Are Restrictions on International Freedom of Movement a Form of Repression in Authoritarian Regimes?

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Are restrictions on international freedom of movement a form of repression in authoritarian regimes? That is the central question behind the research carried out and published in the book “The Ius Constitutionale Commune’s Response to Autocratization: The Case of Venezuela”, coordinated by Drs. Armin von Bogdandy and Mariela Morales Antoniazzi.

The research distinguishes among several measures recently used in Cuba, Nicaragua, and Venezuela and systematizes the regulations governing them, identifying common elements and situating them alongside other States. For comparative purposes, it also examines Latin America’s history in the 1970s, drawing on reports from the Inter-American Commission on Human Rights (IACHR) to determine whether similar restrictions were used during that period. Finally, it explores the applicable inter-American standards and the serious harm these measures cause to democracy.

Measures Adopted in Cuba, Nicaragua, and Venezuela: Common Features

These specifically include bans on nationals leaving the country, bans on foreigners or nationals entering it, the revocation or cancellation of passports, loss of citizenship, and deprivation of nationality.

Which rights are implicated will depend on the specific case and the measure adopted. Even so, loss of nationality or citizenship, and restrictions on entering or leaving the country — including passport cancellation — will generally engage Articles 20 (right to nationality), 22 (freedom of movement and residence), and 23 (political rights) of the American Convention on Human Rights (ACHR). Depending on the grounds behind such restrictions, a case could also involve freedom of thought and expression (Article 13 of the ACHR) and the principle of equality and non-discrimination (Articles 1.1 and 24 of the ACHR). A third consideration concerns how and by whom these measures were adopted, as well as any available means of challenging them, which brings due process and judicial guarantees and protection (Articles 8 and 25 of the ACHR) into play. Finally, the Inter-American Court of Human Rights (IACtHR) has referred to the right to defend democracy (López Lone et al. v. Honduras, 2015) and, more recently, recognized the right to defend rights as a standalone right (Members of the “José Alvear Restrepo” Lawyers’ Collective v. Colombia, 2023) — both of which could apply here if the measure is understood as retaliation for exercising these rights.

Judge Eduardo Ferrer Mac-Gregor went further still, recently outlining a right to democracy in his concurring opinion in Capriles v. Venezuela (2024). This right could likewise come under threat in these scenarios, particularly when such measures form part of a broader pattern of repression against the opposition or the erosion of democratic foundations.

A review of the regulations in force in Cuba, Nicaragua, and Venezuela reveals several shared patterns:

• Depending on the scenario and the applicable regulation, the decision to strip someone of their nationality, bar them from entering or leaving the country, or revoke a document such as a passport is generally made by an administrative authority — Nicaragua being the exception, where judicial involvement is required.
• None of the regulations require justification based on a narrowly defined, exceptional ground. Venezuela’s legislation sets out no closed list of grounds at all, while Cuba’s relies on broad, undefined legal concepts such as “public interest,” “national security,” or “public order.”
• Cuba and Nicaragua also include specific provisions that could easily capture opponents or critics of the political regime — such as being “declared persona non grata” or engaging in “hostile actions against the political, economic, and social foundations of the Cuban State” (Cuba), or “harming the nation’s supreme interests as set out in the legal order” (Nicaragua).
• The relevant regulations do not expressly provide for a procedure that guarantees, for example, due process before the decision is made.
• Nor do these provisions establish a specific means of challenging the decision — beyond the possible application of general appeal mechanisms — with the sole exception of Cuba, which allows a constitutional amparo claim against entry bans imposed on its citizens (Article 98.2 of Cuba’s Migration Law).

Shared Patterns with Other Authoritarian Regimes and Serious Harm to Rights and Democracy

Other States widely regarded as autocracies have adopted similar provisions in recent years, including Belarus (a citizenship law passed in December 2022) and Russia (new legislation on the subject since 2023). Comparable patterns can also be found in Latin America’s authoritarian regimes of the 1970s.

On this point, the research reviewed the IACHR’s annual reports from 1977 to 1989, supplemented by country reports and other sources. It found measures comparable to those analyzed here in the historical record of Chile, El Salvador, Panama, Paraguay, Suriname, and Uruguay, among others.

Viewed through the lens of the ICCAL and inter-American standards, it should first be noted that certain rights in this area admit no restrictions whatsoever. Article 22.5 of the ACHR provides that “no one can be expelled from the territory of the State of which he is a national, or be deprived of the right to enter it.”

Second, for rights that do admit limitations, any restriction must be established by law, pursue a legitimate aim, and satisfy the principle of proportionality — that is, suitability, necessity, and proportionality in the strict sense. Depending on the case, this also calls for closer scrutiny of the specific legitimate aims involved, of who is authorized to adopt the measure, and of due process and judicial guarantees. It is likewise worth pausing here on how certain undefined legal concepts are interpreted and applied as grounds for restriction. Notions such as “national security” and “public order” cannot be left to the interpreter’s discretion; they must instead be read within the system’s minimum triad of democracy, rights protection, and the rule of law.

The equality analysis also becomes stricter where a suspect category of discrimination is present, such as political opinion (Article 1.1 of the ACHR). This leads to a third point regarding the applicable inter-American standards and, in particular, the scrutiny of limits on these rights: the close interrelationship between the rights at stake and their connection to the notion of democracy. There is little doubt that restrictions adopted on political grounds fail to meet the requirements of legitimate aim and proportionality alike. The justification invoked is discriminatory under Article 1.1 of the ACHR, and its underlying rationale runs counter to the basic tenets of a democratic system.

So, are restrictions on international freedom of movement used as a form of repression in authoritarian regimes? The evidence leaves little doubt: yes. From an ICCAL perspective, we must add that these measures also inflict serious harm on both rights and democracy.

In my view (a point I develop further in another article on the subject), cases like these show that a democratic test should form part of the initial review of any rights restriction — making it possible to flag, from the outset, harm to the essential content of democracy and of rights themselves, and to bring its serious implications into full view.